Citation Nr: 1422241
Decision Date: 05/16/14 Archive Date: 05/29/14
DOCKET NO. 12-01 761 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota
THE ISSUE
Entitlement to a total disability rating based on individual employability (TDIU).
REPRESENTATION
Appellant represented by: Katrina J. Eagle, Attorney
ATTORNEY FOR THE BOARD
Devon Rembert-Carroll, Associate Counsel
INTRODUCTION
The Veteran had active service from February 1968 to February 1970.
The matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota.
The Veteran testified before a decision review officer in November 2011 and a transcript of that hearing is of record.
The Veteran initially requested a Board videoconference hearing on his January 2012 VA Form 9. In July 2012, the Veteran, through his representative, withdrew his hearing request.
In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Veteran currently is in receipt of a 70 percent rating for his service-connected posttraumatic stress disorder (PTSD), dysthymic disorder, and anxiety disorder, not otherwise specified (NOS). He also has a 10 percent rating for dislocation of the patella, right knee, and tinnitus, as well as a noncompensable rating for hepatitis C. The combined rating, therefore, is 80 percent with at least one service-connected disability rated 40 percent disabling. As such, the Veteran satisfies the threshold minimum percentage requirements of 38 C.F.R. § 4.16(a) for consideration of a TDIU on a schedular basis, and the determinative issue is whether he is unemployable due to service-connected disabilities.
The Veteran previously worked as a vocational rehabilitation counselor before resigning in 1996 due to emotional and physical stressors that he believed negatively affected his ability to perform his job duties. See September 2010 statement from J.L.; see also July 1996 resignation letter. The Veteran subsequently worked part-time as a Veterans Service Officer, approximately 12 hours per week, from 2000 to 2009. See DRO hearing transcript pg. 11 and pg. 21.
A July 2010 VA psychiatric examination noted that the Veteran was retired and would not look for further work. The examiner also noted that socially, the Veteran is a virtual recluse, isolated from society and relationships.
In a February 2011VA opinion regarding the effect of the Veteran's PTSD on his ability to obtain substantially gainful employment, the July 2010 examiner concluded that the Veteran had previously demonstrated the ability to engage in gainful employment with his condition. The examiner noted that no evidence was presented that his symptoms were at a level where they could render him unable to engage in substantial employment consistent with his experience or education. The examiner concluded that the Veteran's service-connected disabilities did not render it impossible for the average person to follow a substantially gainful occupation. The examiner also concluded that in terms of mental health there was neither an unusual or exceptional disability picture warranting the assignment of a total disability rating.
The Board finds that the February 2011 opinion failed to adequately answer the question of whether the Veteran is currently unable to obtain or maintain substantially gainful employment. The fact that the Veteran was able to previously engage in gainful employment is not dispositive of this claim and not relevant to the issue at hand. Additionally, that the VA examiner failed to take into consideration or reconcile his previous opinion that the Veteran was a virtual recluse before concluding that there was no evidence that his symptoms would render him unable to engage in substantial employment consistent with his experience or education.
Additionally, in February 2011, the Veteran underwent a general VA examination to determine the effects of his service-connected dislocation of the right patella, tinnitus, and hepatitis C on his ability to obtain substantially gainful employment. The examiner concluded that based on the Veteran's history, physical examination, and review of medical records, that Veteran was not disabled from physical or sedentary labor by his service-connected dislocation of patella of the right knee or hepatitis C. The Board notes that the examiner failed to discuss the impact of the Veteran's service-connected tinnitus, alone, and in conjunction with his other service-connected disabilities, on his ability to obtain substantially gainful employment.
As such, the Board finds that the Veteran should be scheduled for a Social and Industrial Survey to determine whether the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities.
Finally, the Board notes that the Veteran's claims file contains an award letter for Social Security Administration (SSA) benefits that show the Veteran began receiving disability in January 1997. The Board notes that the Veteran contends that he has been unable to maintain substantially gainful employment since 1996. When VA has actual notice of the existence of records held by SSA that appear relevant to the claim before VA, VA has a duty to assist by requesting those records from SSA. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992).
Accordingly, the case is REMANDED for the following action:
1. Contact SSA and request a copy of the Veteran's complete SSA disability benefits file, including any administrative decision(s) on the Veteran's application for SSA disability benefits and all of the underlying medical records. A copy of any response(s) from SSA, to include a negative reply, should be included in the claims file.
2. After all outstanding records are associated with the claims file; schedule the Veteran for a Social and Industrial Survey for the purpose of ascertaining the impact of his service-connected disabilities on his employability. The claims folder must be made available to and reviewed by the examiner.
The examiner must evaluate and discuss the effect of all of the Veteran's service-connected disabilities [(i.) PTSD, dysthymic disorder, and anxiety disorder, NOS, (ii.) dislocation of the patella, right knee, (iii.) tinnitus, and (iv.) hepatitis C] on the Veteran's employability.
The examiner should opine as to whether the Veteran's service-connected disabilities render him unable to obtain and maintain substantially gainful employment (employment that would produce sufficient income to be other than marginal) consistent with his employment history, educational attainment, and vocational experience.
Consideration should be given to the Veteran's level of education, special training, and previous work experience but not to his nonservice-connected disabilities or age.
The examiner must discuss the Veteran's lay statements and previous VA determinations of occupational and social impact of the Veteran's service-connected disabilities, including a July 2010 VA psychiatric examination note that the Veteran was a virtual recluse.
The Board also notes that the Veteran's previous ability to maintain substantially gainful employment is not determinative of his current ability.
The examiner is requested to provide a thorough rationale for any opinion provided. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement.
3. After the development requested above has been completed to the extent possible, the RO/AMC should readjudicate the Veteran's claim. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112
(West Supp. 2013).
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WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).